This order addresses the limits of confidentiality claims in civil litigation, affirming that a party cannot shield material financial documentation from disclosure when those documents are central to the calculation of a disputed success fee.
What is the nature of the dispute between Michael George Forbes and Robert Kidd regarding the £20 million settlement?
The litigation centers on a dispute over the distribution of a £20 million settlement sum recovered by the Defendant, Robert Kidd, in a Scottish legal claim against Burness Paull LLP. The Claimant, Michael George Forbes, asserts an entitlement to a 20% success fee from the net proceeds of this settlement. The core of the conflict lies in the Defendant’s accounting of that sum, which he presented in a document referred to as "RTP 1." In this summary, the Defendant claimed that £12,436,000 in expenses had been incurred, significantly reducing the net figure from which the Claimant’s success fee would be derived.
The Claimant challenged the adequacy of this summary, arguing that the Defendant failed to provide the underlying documentation necessary to verify these substantial deductions. The dispute escalated when the Claimant sought a full accounting, including the Client Account Ledger held by the Defendant’s former solicitors, Levy & McRae. As noted in the court records:
The issues arise from Mr Forbes’ Request to Produce documents under Rule 28.16 of the Rules of the DIFC Court (the “RDC”) of 11 November 2024, where Mr Forbes sought:
“All documents showing an accounting and breakdown of the £20 million settlement received by Defendant in the Scottish claim against Burness Paull LLP, to include the Defendant’s Client Account Ledger held with Levy & McRae”.
Which judge presided over the application in the DIFC Court of First Instance?
The application was heard by H.E. Justice Sir Jeremy Cooke in the DIFC Court of First Instance. The Amended Order with Reasons was issued on 26 March 2025, following the Claimant’s application dated 19 February 2025 and subsequent evidence submissions from both parties in March 2025.
What were the primary legal arguments advanced by Michael George Forbes and Robert Kidd regarding the disclosure of financial records?
The Claimant argued that the Defendant’s "RTP 1" summary was "manifestly deficient" because it provided high-level figures without any supporting documentation. Mr. Forbes contended that he was entitled to verify the legitimacy of the £12.4 million in expenses claimed by Mr. Kidd, particularly regarding professional fees and loans. The Claimant’s counsel relied on the Court’s power to order clarification of matters in dispute, asserting that the requested information was reasonably necessary and proportionate to resolve the success fee calculation.
Conversely, the Defendant maintained that he had already provided sufficient disclosure through the production of invoices raised to A & E Investments/Momentum International Services. Regarding the specific request for the Client Account Ledger and details of fee recoveries, the Defendant argued that he was not in possession, custody, or control of the ledger and that he was legally barred from disclosing certain information. As the Court summarized:
In relation to the question whether there had been any recovery of legal fees from Levy & McRae and/or Jonathan Brown and for information relating to any such recovery, Mr Kidd’s answer was to say: “the Defendant is not permitted to disclose this information as he is bound by certain confidentiality obligations”.
What was the precise doctrinal issue the Court had to resolve regarding the intersection of confidentiality and disclosure obligations?
The Court was tasked with determining whether a party can rely on private confidentiality obligations to withhold information that is material to the outcome of a dispute. The legal question was whether the Defendant’s asserted "confidentiality obligations" regarding his dealings with former solicitors and third-party entities could override the Court’s power to compel the production of documents under the RDC. Specifically, the Court had to decide if the Defendant’s failure to provide an accounting of the £20 million settlement—and his reliance on a self-prepared summary—constituted a failure to meet his disclosure obligations, thereby justifying a court-ordered production of the underlying financial ledger and supporting invoices.
How did Justice Sir Jeremy Cooke apply the test of materiality to the Defendant’s claims of confidentiality?
Justice Sir Jeremy Cooke rejected the Defendant’s reliance on confidentiality, emphasizing that such claims cannot be used to obstruct the administration of justice when the information is critical to the dispute. The Court found that the Defendant’s previous responses were insufficient and that the Claimant had a clear right to see the underlying documentation to verify the financial summary. The Court’s reasoning was grounded in the principle that the Court’s authority to compel production takes precedence over private agreements.
Confidentiality obligations are always overridden by a Court order compelling production or provision of information where such matters are material to the outcome of the dispute.
The Court further noted that the Claimant’s request for information was not merely a fishing expedition but a necessary step to clarify the financial breakdown presented in RTP 1. By ordering the Defendant to provide a comprehensive breakdown of professional fees and loans, the Court effectively pierced the veil of the Defendant’s claimed confidentiality, requiring him to either produce the documents or provide evidence of his efforts to obtain them from third parties.
Which RDC rules and procedural authorities were central to the Court’s decision to grant the application?
The Court’s decision was primarily anchored in the Rules of the DIFC Court (RDC). The Claimant initially sought documents under RDC 28.16 (Request to Produce). However, the Court noted that the application for further information was appropriately brought under RDC 19, which grants the Court the power to order a party to clarify any matter in dispute. The Court highlighted that this power is subject to the requirements of "reasonable necessity and proportionality." Additionally, the Court referenced RDC 28.36, noting that while the Claimant could have applied for further disclosure under that rule, the procedure followed under RDC 19 was equally valid for obtaining the necessary clarification.
How did the Court utilize the evidence provided by the parties to reach its conclusion?
The Court relied on two witness statements, specifically the statement of Mr. Hussain dated 18 February 2025, which supported the Claimant’s application. The Court also carefully considered the Defendant’s evidence in answer and the Claimant’s subsequent reply. As the Court noted:
I have borne these in mind with the reply served on the half of Mr Forbes by his counsel dated 12 March 2025.
The Court used these submissions to contrast the Defendant’s "manifestly deficient" one-page financial summary against the detailed, 22-page Request for Information (RFI) served by the Claimant. The Court concluded that the Defendant’s refusal to provide underlying documentation for the £8.5 million in professional fees and £1.9 million in loans was untenable, leading to the order for full disclosure.
What was the final disposition and the specific relief granted to the Claimant?
The Court granted the Claimant’s application in full. The Defendant was ordered to provide, within 21 days, a comprehensive breakdown of the £8,512,000 in professional fees and the £1,979,000 in loans, including supporting documentation such as bank statements and loan agreements. Furthermore, the Defendant was ordered to produce the Client Account Ledger from Levy & McRae. If the Defendant is unable to produce these documents, he must file a witness statement within 24 days detailing his attempts to obtain them from his former solicitors or controlled companies. Regarding costs, the Court ordered:
The Defendant shall pay the Claimant the costs of this Application to be the subject of assessment if not agreed, but not to be assessed or paid until the conclusion of this action.
What are the practical implications for DIFC practitioners regarding confidentiality and disclosure?
This case serves as a stern reminder that the DIFC Court will not tolerate the use of "confidentiality" as a shield to prevent the disclosure of material financial information. Practitioners must advise clients that if a document is material to the dispute, private contractual obligations of confidentiality will not prevent the Court from ordering its production. Furthermore, the case highlights the Court’s preference for transparency in financial accounting; a party who presents a summary document (like RTP 1) without underlying supporting evidence risks an adverse order compelling the production of the raw data. Litigants should anticipate that failure to comply with such orders will likely lead to the Court drawing adverse inferences or imposing strict requirements for evidence of efforts to retrieve documents from third parties.
Where can I read the full judgment in Michael George Forbes v Robert Kidd [2025] DIFC CFI 081?
The full judgment can be accessed via the official DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0812023-michael-george-forbes-v-robert-kidd-2 or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-081-2023_20250326.txt
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | No specific external precedents cited in the provided order text. |
Legislation referenced:
- Rules of the DIFC Court (RDC) 19
- Rules of the DIFC Court (RDC) 28.16
- Rules of the DIFC Court (RDC) 28.36